On June 27, 2019, the Indonesian Constitutional Court rejected the petition of presidential candidate Prabowo Subianto to nullify the presidential election result. All nine justices rejected Subianto’s petition in its entirety, and, the Court reaffirmed the victory of the incumbent President, Joko “Jokowi” Widodo and his running mate, a conservative cleric, Maruf Amin with an 11% lead over the ticket of Prabowo Subianto and Sandiaga Uno. Nowadays, the attention has shifted to Jokowi’s cabinet line-up. Regardless how bold will Jokowi be in appointing the Cabinet ministers, there are still many unresolved unconstitutional issues stemming from the Presidential Election, and many more constitutional issues are awaiting in Jokowi’s second term.

The Indonesian “Electoral College” and the
Presidential Threshold

Despite expanding his coalition to include big political parties (Golkar and United Development Party – PPP) that had supported Subianto in 2014,[1] Jokowi gained only 2.35% more votes in the 2019 Presidential Election.[2] The presidential election results also manifest a new polarization between Java and the “Outer Islands.”[3] Jokowi performed well in Java island, mainly in Central Java and East Java; the home to 56.7 percent of the Indonesian population. Subianto, however, won in most of Sumatra’s Province, in addition to the provinces of Banten and West Java. Jokowi lost terribly in the Muslim majority provinces such as Aceh, but he performed well in the non-Muslim regions like predominantly Hindu Bali and predominantly Christian provinces such as North Sulawesi and Nusa Tenggara Timur. Overall, Jokowi won a majority of votes in 21 out of 34 provinces, while Subianto secured victory in 13 provinces that were mostly located in the “outer islands.”

During the
counting process, Subianto’s camp urged the General Election Commission to
declare the winner of the presidential election based on article 6A (3) of the
Constitution, which states:

Any ticket of candidates for President and Vice-President which polls a vote of more than fifty percent of the total number of votes during the general election and in addition, polls at least twenty percent of the votes in more than half of the total number of provinces in Indonesia shall be declared elected as the President and Vice-President.

At that time, Subianto’s supporters
were hoping to get the benefit of winning in the outer islands and to halt
Jokowi’s victory based on the assumption that Jokowi’s votes were concentrated
only in Java.

Nevertheless, the Constitutional Court has decided that the Constitutional Provision above only applied if there were more than two candidates.[4] In other words, the Provision does not apply in a race between two presidential candidates. The Court argued that although the Constitution never explicitly states that the Provision must be applied for the race between more than two presidential candidates, it can be presumed that the drafter of the Constitution envisioned a presidential race with multiple candidates.[5] While the Indonesian Constitution does not adopt an electoral college; there is a spirit of “electoral college” behind the adoption of Article 6A (3). The original purpose of the Electoral College in the United States was to reconcile differing state and federal interests, by providing the less populous states some additional leverage in the election process. The Indonesian Constitutional Court acknowledged that the drafters wanted to ensure that the less populous outer islands would have some leverage in the election process and the provision was intended to prevent a presidential candidate from relying solely on the vote in Java islands.[6] Nevertheless, the Court contradicted its reasoning by holding that the Provision will not be applied to a presidential race between two candidates. Moreover, there is a further inconsistency in Court’s reasoning; while the Court held that the drafters envisioned a presidential race with multiple candidates, the Court itself condoned a system that tailors the race to two presidential candidates instead of multiple candidates.

In my analysis in this blog, I have explained how the Court was condoning a system that aimed to prevent multiple candidates in the presidential election.[7] The crux of the problem is the legislature set a high presidential threshold, in which only political parties or a coalition of political parties who hold at least 20 percent of seats in the House of Representative or have obtained at least 25 percent of the popular vote in the legislative election may nominate a presidential candidate. The Court refused to strike down the Provision on presidential threshold, and, moreover, the Court deferred to the legislature on a policy that the 20 and 25 percent requirement must now be based on the official result of the last general election (in this case, the 2014 General Election).[8] Under such an arrangement, there are not many political parties who are able to nominate a candidate, which eventually boiled down to two presidential candidates from the two biggest political parties.[9]

Relocation of Capital versus Constitutional Amendment

As one of his election pledges, Jokowi announced the plan to relocate Indonesia’s Capital from Jakarta to a new place in the island of Kalimantan. Jokowi formally proposed the Capital relocation in his speech in Parliament to commemorate the 74th anniversary of Indonesian independence.[10] On Monday, August 26, 2019, Jokowi announced that the new capital will be located between North Penajam Paser and Kutai Kartanegara in East Kalimantan. But other than his speech, there is no formal legal basis for his decision to move the Capital yet. Jokowi said that he had sent a letter to the House of Representatives about the decision and that the government would prepare a bill regarding the capital relocation for the House’s approval as soon as possible.[11]

Indeed, there is a
compelling interest for Jokowi to relocate the Capital, considering that the
current Capital, Jakarta, is facing chronic issues from flooding, traffic
congestion, pollution, as well as soaring property prices. Nevertheless, the
Jokowi administration should not take the issue lightly from a legal
standpoint. Perhaps Jokowi and his legal
team should learn from a similar experience in a different country. Fifteen
years ago, the then President of South Korea Roh Moo-Hyun had to swallow a
bitter pill as he witnessed his proposal to relocate the South Korean Capital
was struck down by the Constitutional Court.[12] There
is no doubt that Jokowi and his collation supporters will have a clear majority
in parliament, and, therefore, they won’t have any problem to pass a statute to
relocate the capital. Nevertheless, if Jokowi formally passed a statute to
relocate the capital, then his administration has to deal with a possibility
that his plan will be challenged to the Indonesian Constitutional Court.

One of the
holdings of the South Korean Constitutional Court in the Relocation of Capital City case is that Seoul is the Capital of the
nation as part of an unwritten constitutional custom, and, therefore, such
legal norm may be revised only by way of constitutional revision.[13]
Learning from the South Korean experience, perhaps Jokowi could push for a
constitutional amendment to relocate the Capital, but this move will
undoubtedly bring the administration into a new legal fray.

After Jokowi has
secured his second term, his political party, the PDI-P (Indonesian Democratic
Party of Struggle) has proposed a plan for a constitutional amendment.
Nevertheless, instead of proposing the constitutional amendment for the
relocation of the Capital, the PDI-P wanted to reinstate the People’s
Consultative Assembly (MPR) – which now acts as the joint session between the
House of Representatives (DPR) and Regional Representatives Council (DPD) – as
the highest governing body in the country. Under the New Order military regime’s
constitution, the MPR was the highest governing body that had authority to
elect the President, but its members were mostly picked up by General Soeharto
as the President. The PDI-P has denied
that it has any intention to entrench the status quo, but rather it merely
wants to restore the authority of the MPR to issue the defunct National State
Planning Policy (Garis – Garis Besar
Haluan Negara – GBHN), which was a centralized economic plan model under
the New Order military regime.

Jokowi has
indicated his opposition to reinstating the GBHN by stating that the country
already has national development planning as manifested in a statute.[14]
Moreover, Jokowi also bluntly expressed his dismay to the amendment proposal
because it might have a hidden agenda to restore the authority of the MPR to
appoint the President. “I am a President
directly elected by the people. Why would I support the plan for the MPR to
appoint the President?”[15] stated
Jokowi.

While Jokowi has a legitimate reason to oppose his party’s plan to reinstate the old system, it does not mean that he should oppose the idea of a constitutional amendment. One of the ways for Jokowi to cement his legacy is to lead a constitutional amendment that includes the agenda to relocate the Capital, to reform the electoral system, and other reforms that may strengthen democratic institutions in Indonesia.

[1]
In the 2019 Presidential Election, Jokowi was supported by ten political
parties, while in the 2014 Presidential Election, he was supported by five
political parties.

[2]
In 2014, Jokowi gained the popular vote in the sum of 70,997,833 (53.15 %) and
in 2019, he received 85,607,362 (55.50 %) votes.

[3]
For a detailed analysis of the polarization between Java and the outer islands,
please see Tom Pepinsky, “Religion, ethnicity, and Indonesia’s 2019 Presidential
Election,” New Mandala, May 28th, 2019, available at https://www.newmandala.org/religion-ethnicity-and-indonesias-2019-presidential-election/

[8]
Since 2008, the Court has reviewed the presidential threshold requirement
multiple times (15 cases), and it has consistently argued that the policy is
constitutional. The latest instance was the Constitutional Court Decision No. 49/PUU-XVI/2018
(hereinafter the Presidential Threshold
XV case).

[9]
Nevertheless, the Court has largely avoided public blame for its decision
upholding electoral thresholds. Instead, public anger was directed to the
Court’s decision that stated that the presidential election must be held
simultaneously with the legislative election.
On April 17, 2019, Indonesia held, for the first time, a simultaneous
general election as mandated by the Court. But the Court immediately took heat
as the general election turned to be one of the most trying in Indonesia’s
history, with the death of more than 400 polling station workers. Most analysts
and media blamed the Constitutional Court for holding the presidential and
legislative elections simultaneously. Immediately, they proposed that the
elections be held separately in 2024 as in past elections. But this was more about
logistical and technical issues surrounding simultaneous election, as opposed
to the constitutionality of a simultaneous election. The work of polling
station workers would have been made much more comfortable if Indonesia allowed
electronic voting. Even without electronic voting, the General Election
Commission should at least allow polling station workers to use computers to
file reports, instead of requiring a manual report.

[10]
The Presidential Address to the Indonesian Parliament, August 16th,
2019.

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